R. v. Johnson, 2023 BCPC 206

Citation: R. v. Johnson 2023 BCPC 206 Date: 20230718 File No: 251709-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. DESMOND JAVIER JOHNSON CORRIGENDUM TO THE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: W. Dawson, KC Counsel for the Defendant: E. Warren Place of Hearing: Surrey , B.C.

Dates of Hearing: March 17, 2023; April 18, 2023; June 1, 2023; and June 14, 2023Date of Judgment: July 18, 2023 A Corrigendum was released by the Court on September 18, 2023. The corrections have been made to the text and theCorrigendum is appended to this document. INTRODUCTION [1] The accused, Desmond Javier JOHNSON, by Information No. 251709-1 (the “Information”), is charged with the followingoffences, namely, that on or about November 17, 2022, at or near Surrey, in the Province of British Columbia, did: Count 1: knowingly utter or convey a threat to cause death or bodily harm to A.K., contrary to s. 264.1(1)(

a) of the Criminal Code; Count 2: knowingly utter or convey a threat to cause death or bodily harm to A.M., contrary to s. 264.1(1)(

a) of the Criminal Code; Count 3: commit the offence of intimidation of a justice system participant against A.K., contrary to s. 423.1(3) of the Criminal Code;and Count 4: commit the offence of intimidation of a justice system participant against A.M., contrary to s. 423.1(3) of the Criminal Code. [2] The Crown proceeded by indictment. The accused elected to be tried by a Provincial Court Judge. He pled not guilty to all fourcounts.

However, while testifying, the accused admitted that he knowingly uttered or conveyed a threat to cause bodily harm to A.K. andA.M. (collectively, the “complainants”), inviting the court to find him guilty on Counts 1 and 2. [3] Even though the Information alleges that the index offences occurred on or about November 17, 2022, the incidents leading tothese charges occurred during the period September 2022 to November 20, 2022 (the “Relevant Period”). [4] The Crown referred to the R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30 (“B.G.”) case and s. 601(4.1) of theCriminal Code in submitting that a variance between the indictment and the evidence taken regarding date or place of the alleged offenceis not generally material. At p. 49, the Supreme Court of Canada, in B.G., said: This longstanding rule of the common law is summarized by Ewaschuk J. in his text Criminal Pleadings and Practice in Canada (2nd ed.1987) at para. 9:10050 as follows: From time immemorial, a date specified in an indictment has never been held to be a material matter.

Thus the Crown need not prove thealleged date unless time is an essential element of the offence or unless there is a specified prescription period. [Emphasis added.] From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from theevidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or herdefence.

It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to resultunless time is an essential element of the offence. [5] The defence did not take any issue with the date of the alleged offences in the Information. [6] The Crown also raised the issue of the rule in Browne v. Dunn in that the defence did not cross-examine the Crown witnesses oncertain matters of substance to which the accused testified.

With the parties’ consent, this issue was resolved by recalling A.K. to testify,and he did on June 1, 2023. [7] I will first set out the applicable legal framework, then review the evidence and the parties’ submissions, and finally discuss theissues at hand. THE LEGAL FRAMEWORK Legislation [8] The relevant provisions of the Criminal Code are as follows:

Definitions 2 In this Act, bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merelytransient or trifling in nature; justice system participant means (

b) a person who plays a role in the administration of criminal justice, including (

v) an informant, a prospective witness, a witness under subpoena and a witness who has testified, Uttering threats

264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat, (

a) to cause death or bodily harm to any person; Intimidation 423

(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of anoffence punishable on

summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another personto abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain fromdoing, (

a) uses violence or threats of violence to that person or their intimate partner or children, or injures the person’s property; (

b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or otherinjury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will bedamaged; Intimidation of a justice system participant or a journalist 423.1

(1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in (

b) a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties; Case Law [9] In support of its position, the Crown relies on the following cases: (

a) R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30; (

b) R. v. S.D., 2011 SCC 14; (

c) R. v. McRae, 2013 SCC 68 (“McRae”); (

d) R. v. Armstrong, 2012 BCCA 248 (“Armstrong”); and (

e) R. v. J.M., 2021 BCCA 263. Legal Principles [10] The relevant legal principles from these cases are as follows: (

a) With respect to s. 264.1(1) of the Criminal Code: McRae: The actus reus of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which thewords were uttered or conveyed would have perceived them to be a threat of death or bodily harm. The Crown need not prove that theintended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously.

Nor mustthe words be directed toward a specific person; a threat against an ascertained group of people is sufficient. (paras. 10 to 16) The mens rea of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It isnot necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat.A subjective standard of fault applies.

However, in order to determine what was in the accused’s mind, a court will often have to drawreasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. (paras. 17to 23) (

b) With respect to s. 423.1 of the Criminal Code: Armstrong: [44]

Section 423.1 is a specific intent offence. In R. v. Bernard, (SCC), [1988] 2 S.C.R. 833 at 863, 45 C.C.C. (3d) 1,Justice McIntyre described the difference between a specific and general intent offence. He described specific intent by reference to “thepurpose” of the performance of the actus reus: A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and those whichrequire only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understood andkept in mind in approaching this case. In R. v.

George, (SCC), [1960] S.C.R. 871, Fauteux J. said, at p. 877: In considering the question of mens rea, a distinction is to be made between (

i) intention as applied to acts considered in relation to theirpurposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of

an act is,in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specificintent attending the purpose for the commission of the act. This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to theperformance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of common

assault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent orpurpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, orassault with intent to maim or wound, are examples of such offences. [45] There is not, however, a clear equation of “intent” with “purpose”; intention as understood in relation to an offence does notalways require that the purpose of the act coincide with “intent” under the Criminal Code.

In Chartrand, for example, JusticeL’Heureux-Dubé, discussing the offence of abduction of a child “with intent to deprive a parent ... of the possession of that person”contrary to s. 281 of the Criminal Code, said at 889-890: General principles of mens rea apply to the words “with intent to”, and, accordingly, in order to conclude that the mens rea of theoffence under s. 281 has been made out, it is sufficient that the taker knows or foresees that his or her actions would be certain orsubstantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child.

In R. v. Buzzanga and Durocher (1979), (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), although in the context of wilfulpromotion of hatred, Martin J.A. stated at pp. 384-85: I agree ... that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from

an act whichhe does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of theconsequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bringit about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimateobjective. This definition of intent was subsequently approved by this Court in R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, at pp.774-75. Moreover, in R. v.

Olan, (SCC), [1978] 2 S.C.R. 1175, at p. 1182, this Court examined the possibility that intentunder s. 338 (now s. 380) of the Code may encompass a contemplated outcome distinct from the purpose of the conduct. It adopted theEnglish Court of Appeal's dictum in R. v. Allsop (1976), 64 Cr. App. R. 29: Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to thatpurpose and incidental. It is “intended” only in the sense that it is a contemplated outcome of the fraud that is perpetrated. [Emphasis added.] [47] The offence of which Mr.

Armstrong is convicted is expressed in somewhat different language, with “in order to” in place of“with intent to”. Yet although the words differ, I do not consider the phrase “in order to” has a more specific meaning than the phrase“with intent to”, and it seems to me the approach described in Chartrand is the approach that should apply to the mens rea component ofan offence under s. 423.1. Thus I do not accept the Crown’s submission that the mens rea test is “relaxed somewhat” from the testexpressed in Chartrand; nor do I accept that it is more rigorous.

Assessment of Credibility [11] This case raises issues of credibility and involves the application of the presumption of innocence. This presumption, enshrined ins. 11(

d) of the Charter of Rights and Freedoms, requires that an accused not be convicted unless each essential element of the offencehas been proven beyond a reasonable doubt. The Crown bears the burden of proof. The accused need not prove the existence or non-existence of a fact essential to guilt. This standard of proof is higher than the standard applied in civil actions of proof based upon abalance of probabilities, yet less than proof to an absolute certainty. That is, it is not proof beyond any doubt: R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, para. 14. [12] In a criminal trial, in assessing credibility, the test is not whose evidence I believe – that is, the evidence of the Crown or theaccused – but rather, whether, on the totality of the evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt. [13] In this context, the law concerning credibility assessment is well settled. The analytical framework for such assessment is set outin the decision of the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, at p. 757, as augmented bythe decision of the Court of Appeal for British Columbia in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146(C.A.). Based on this framework, I instruct myself as follows: (

a) if I believe the evidence of the accused, I must acquit the accused; (

b) if I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit the accused; (

c) even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I do accept, Iam convinced beyond a reasonable doubt by that evidence, of the accused’s guilt; and (

d) if, after consideration of all of the evidence, I am unable to decide whom to believe – the accused or the Crown witnesses – I mustacquit the accused. [14] I will now turn to the background and evidence in this case. BACKGROUND AND EVIDENCE Background [15] The complainants and W.C.G. testified on behalf of the Crown. The accused testified on his own behalf. Certain documents wereentered as exhibits.

[ 16 ] During the Relevant Period, all three Crown witnesses and the accused were residents of Foxglove Supportive Housing and Shelter (the “Foxglove”), located in Surrey, British Columbia. Other than the accused who moved out of Foxglove in or around the end of November 2022, the other three witnesses still reside at Foxglove. [ 17 ] RainCity Housing operates the Foxglove shelter. Foxglove opened for operation in April 2022. There are approximately 158 to 164 residents, housed on six floors. The common areas are on the bottom floor.

The residents mainly congregate in three places: at the front of the building; around the smoke pit in the back of the building; and on the second floor. [ 18 ] A.M. moved to Foxglove in April 2022, and about three weeks later, A.K. arrived. Their rooms are on the fourth floor. W.C.G. was at Foxglove before the complainants moved in. W.C.G.’s room is also on the fourth floor, across the hall from A.K. [ 19 ] The accused arrived at Foxglove sometime in September 2022. He was on the second floor (the shelter portion of the residence). [ 20 ] A.K. is 59 years of age.

He suffers from a number of health conditions and is on disability. He uses crystal meth daily for pain management. [ 21 ] A.M. is 34 years of age, and she is A.K.’s niece. She suffers from a number of debilitating health conditions. She has been a heroin addict since about age 14 or 15. She is also on disability. [ 22 ] W.C.G. is 61 years of age. She also suffers from a number of health conditions. She uses marihuana every now and then. She has not used alcohol for about 10 years. [ 23 ] The accused is 48 years of age. He has four children, two adults and two minors.

He too has been a heroin addict for the better part of his life. He has had some periods of sobriety. Evidence regarding Counts 1 and 2 (uttering threats) A.K.’s evidence [ 24 ] A.K. did not know the accused prior to the accused arriving at Foxglove. The accused is a drug user and dealer. He sold drugs, including meth, heroin, and marihuana. [ 25 ] On or about November 19, 2022, the night after A.M. had allowed the accused to sleep in her room, A.K. went to A.M.’s room, and found urine everywhere in her bathroom. So, he cleaned her whole suite.

While he was cleaning, at about 9:30 p.m., the accused and another resident named W. approached the suite. The accused came in and said to A.K., “I want my money and I want my dope. I know you guys stole it. I’m going to stab you.” A.K. responded, “Get out. I’m not scared of you. We didn’t take your dope or money. You’ve smoked it.” [ 26 ] A.K. told the accused that he was extorting, and that is why he got kicked out of Foxglove because he had done that to too many people.

A.K. reported this incident to the office staff at Foxglove. [ 27 ] On November 20, 2022, when A.M. was waiting for the ambulance to go to the hospital, A.K. was standing behind the accused, and A.K. heard the accused say to A.M., “I want my drugs, otherwise, I’m going to fucking stab you guys. I’m going to come down to the hospital.” [ 28 ] The accused said he would “cut off our hands,” referring to the complainants’ hands. [ 29 ] The accused was serious when he made these statements. He was about six feet from where A.M. was.

W.C.G. was also there. [ 30 ] The accused was a “thug and a bully,” and A.K. knew the accused would carry out his threat, as the accused carried at least three knives on him. A.K. then called 911. He believes W.C.G. also called 911. [ 31 ] On November 25, 2022, A.K. gave a statement to the police. A.M.’s evidence [ 32 ] On the morning of November 20, 2022, A.M. was in a lot of pain due to kidney and gallbladder issues.

She was waiting at the front of Foxglove for an ambulance to take her to the hospital, when the accused caused a “kerfuffle” by accusing her of stealing drugs and money from him and threatening to stab her. [ 33 ] A.M. did not steal from the accused, but he is well-known at Foxglove for extorting others as well. [ 34 ] When W.C.G. intervened, both she and the accused got louder and more aggressive. The accused called them rats, and threatened to stab the complainants and W.C.G.

W.C.G.’s evidence [ 35 ] W.C.G. considered the accused “a good guy to everybody” and a “very nice person.” Her relationship with him was good. She saw him at the smoke pit almost every morning. She used to get him cigarettes. [ 36 ] Foxglove makes people rude and mean. People break into other people’s rooms and steal things. It is not a safe place to be. Someone stole W.C.G.’s computer, but she does not know who stole it. She believes that somebody stole the accused’s drugs and money. [ 37 ] On the morning of November 20, 2022, A.M. was very sick. W.C.G. was with A.M. at the front of the building, when they were

waiting for the ambulance to take A.M. to the hospital. At that point, the accused came over and said to A.M., in a high tone voice, “I want my money and my drugs back, or I’ll punch your face in.” A.M. did not respond, as she was very sick. [ 38 ] W.C.G. called 911, and she eventually gave a statement to the police. The accused’s evidence [ 39 ] The accused has been addicted to drugs for the better part of his life. He has been sober for some periods. He relapsed in the summer of 2022.

While at Foxglove, he used drugs for the first month or so, and he sold drugs. [ 40 ] The accused learned that the complainants were going to testify at Gucci’s trial (I will discuss Gucci in more detail shortly), and he did not want to associate with them, as he considered them rats. [ 41 ] A.M. tried to talk to the accused and come into his space all the time.

He avoided her, and told A.K. to tell A.M. to stay away from the accused, as he did not want to sell drugs to her. [ 42 ] Late at night on the accused’s birthday, November 18, 2022, he had had a lot to drink and smoke (weed), and had fallen asleep on the second floor balcony. Someone told him that A.M. was trying to sit beside him and talk to him, and this person saw A.M. put the accused’s drugs into her bra. [ 43 ] The accused got upset, and confronted her.

He told her to give him back his drugs and money; otherwise, he would “cut her hand off.” He admitted that, “it was something stupid,” and he should not have said that, but he did. He also told A.M. that he would get his daughter, who is 28 years old, to punch A.M. out if she did not give the accused his dope back. [ 44 ] The accused has a habit of making reckless threats when he gets angry. When he was younger, he was in a lot of trouble, and making threats was his defence mechanism. [ 45 ] The accused did not know for sure whether A.M. stole his drugs and money.

What he said to A.M. was “stupid shit. [He] shouldn’t have said it. . . . And that’s why [he] feel[s] bad.” [ 46 ] After leaving Foxglove, the accused went to the Phoenix Centre, The Nest, to get treatment and “fix himself.” He was then charged for the index offences. After he discovered there was a warrant for his arrest, he turned himself in in January 2023, and has been in custody since then.

Evidence regarding Counts 3 and 4 (intimidation) A.K.’s evidence [ 47 ] Prior to moving to Foxglove, the complainants lived at a residence on Laurel Drive in Surrey, British Columbia, with a few other individuals. [ 48 ] On December 30, 2021, a few individuals, including a young man of African descent known as “Gucci ,” broke into the Laurel Drive residence. The complainants were in the Laurel Drive residence while the break-in was in progress. During this break-in, Gucci shot A.K. on his left leg, outside his calf, with an AK 47 assault rifle.

A.K. underwent two surgeries for his injury, and was hospitalized for a few weeks. [ 49 ] A.K. provided a statement to the police, and identified Gucci in a police photo line-up. [ 50 ] A.M. showed A.K. a Global TV online

article about Gucci being on the run, and having been apprehended and charged.

A.K. later learned that Gucci’s real name was T.L. [ 51 ] The complainants were subpoenaed to give evidence at Gucci’s trial, which was scheduled for January 31, 2023. [ 52 ] When the issue of appearing as a witness at Gucci’s trial came up, A.K. knew “he would not be able to live with himself if Gucci got away or someone else got nailed for this.” He told his support worker at Foxglove that he was going to testify, but he cannot remember if he told other residents. [ 53 ] In 2022, A.K. spent most of his time inside his room, but he would come outside to smoke eight times a day.

He would see the accused in the common areas, namely, the smoking pit, dining hall, and up and down the elevator. He would see the accused at least three times a day. [ 54 ] The accused always had a “bong” in his hand, and he was always in a “nod,” with his head drooping.

The accused used heroin and “crack” the whole time he was at Foxglove. [ 55 ] A.K. once told the accused about the shooting incident and that he was going to testify (noting, he cannot remember who brought up that incident), and the accused told A.K. to “forget about everything and not report.” Other residents told him the same thing as well. [ 56 ] A.K. knew that Gucci was “heavy,” meaning “violent.” [ 57 ] A.K. knew Gucci had a reputation as a “rapist” or a “skinner,” as known in the jail community.

However, the accused was not known as a “rapist” or a “rat.” [ 58 ] The accused told A.K. more than once to “forget about everything.” [ 59 ] The accused told A.K. words to the effect that he and his niece should not go to court because things can happen; his niece could

be kidnapped and stabbed; they would hunt the complainants down, and there is no place the complainants could go where they could not find the complainants.

The accused made these statements in a serious manner. [ 60 ] When the accused told A.K. not to go to court, A.K. told the accused, in a growling manner, to “take a hike” and that he knew what he was doing. [ 61 ] Every time A.K. saw the accused in the common areas and the smoke pit, the accused would refer to “Gucci” (but never by his real name, T.L.) and would say to A.K. that the accused and Gucci were good friends, and when Gucci “was on the run from the law,” the accused was with him.

One time, when the accused was on the phone, he said to A.K., “I was talking to Gucci, and he wants to talk to you,” and he handed the phone to A.K.

A.K. told the accused that he had nothing to say to Gucci, and for the accused to mind his own business. [ 62 ] After the accused moved into Foxglove, the residents started calling A.K. and his niece “rats.” [ 63 ] Initially, the accused sold drugs to the complainants, and A.K. would pick up drugs from the accused for A.M., but later he stopped going to the accused, as he had his own dealer and he stayed with that one person. [ 64 ] A.K. disagreed with the defence’s suggestion that the accused would not sell drugs to the complainants because the accused considered them rats; if the accused sold drugs to rats, the accused would also be considered a rat; and the accused did not want to be considered a rat. [ 65 ] Everybody had A.M. so scared that she wanted to run away.

However, both complainants testified at Gucci’s trial. [ 66 ] A.K. had no further contact with the accused after the accused left Foxglove. A.M.’s evidence [ 67 ] A.M. described the December 30, 2021 shooting incident similar to how A.K. described it. [ 68 ] Gucci was holding the gun. He was a big black guy, with tattoos, and a mole on his face. He had an accent. [ 69 ] A.M. cannot remember if she got the subpoena to appear as a witness at Gucci’s trial before or after November 20, 2022, when she went to the hospital.

She testified at the trial on January 31, 2023. [ 70 ] For safety reasons, A.M. did not tell anyone at Foxglove that she was going to testify at Gucci’s trial, as instructed by the police officer who served her the subpoena. [ 71 ] About half way into the accused’s residency at Foxglove, A.M. heard the accused talking very loudly to two of her friends to the effect that the accused and Gucci were “home boys,” “they got each other’s back,” and that they would “get a piece” (meaning a gun). [ 72 ] The residents at Foxglove found out that the complainants were going to testify at Gucci’s trial.

The residents would bully the complainants, and call them “rats” and “snitches.” They wrote on bathroom walls to this effect as well. [ 73 ] A.M. felt unstable and wanted to kill herself. She was suicidal. She has very deep fears that things might happen for her and her uncle. This is a big concern, and it has been traumatizing for her. [ 74 ] When A.M. first met the accused outside Foxglove, he was funny and nice to her, but when he got into Foxglove, he was a different person.

He would not talk to her. [ 75 ] One or two days before she went to the hospital, A.M. allowed the accused to sleep in her room, as he was “out of it” and he was saying that people were stealing from him. He came into her room at about midnight and was there until early morning. [ 76 ] While in her room, A.M. asked the accused why he was treating her differently now, compared to when he first met her. He told her that he had “paperwork” on her. She did not know what he meant, but she thought it might be some legal document. She assumed that the accused had somehow been in touch with Gucci. [ 77 ] A.M. was scared.

Even though she did not tell the accused that she was going to testify at Gucci’s trial, he told her not to go, as she would get kidnapped and killed. [ 78 ] A.M. asked the accused how he knew about the Gucci matter, and he told her, “we talked about it in jail,” suggesting that the accused and Gucci were in jail together. [ 79 ] A.M. then asked the accused what he thought was going to happen next.

He said that to get to A.K., they would get to her first by kidnapping her and putting her in the trunk. [ 80 ] The accused would not say who would kidnap her, but stated this in a “taunting manner – laughing but serious.” A.M. was “freaked out” by this. [ 81 ] A.M. spoke to the accused only for a few minutes, but he was saying “weird” things. He was on heroin. She wanted to leave, but could not, as the accused slept on her lap for about six hours. He stayed in her room from about midnight to at least 8:00 a.m. A.M. brought breakfast for him.

In the morning, they were laughing and hugging each other, and then the accused left. [ 82 ] The accused had urinated all over A.M.’s bathroom floor, which A.K. cleaned up. [ 83 ] A.M. saw the accused later that day, but he was totally ignoring her, and he looked “pissed off.” The next day, November 20,

2022, she was in a lot of pain. She was waiting to go to the hospital, when the accused alleged that she stole from him, and threatened to stab her, A.K. and W.C.G. [ 84 ] A.M. has trouble remembering things. W.C.G.’s evidence [ 85 ] W.C.G. did not know who Gucci was, or whether the complainants were to be witnesses at Gucci’s trial. [ 86 ] One morning, the accused told W.C.G. that if A.K. goes to court, something would happen to him and to A.M.

He was high on drugs when he said this. [ 87 ] On the morning of November 20, 2022, when W.C.G. was with A.M., waiting for the ambulance, the accused said, “somebody’s going to get hurt.” W.C.G. was not sure whether the accused said this in a serious manner. The accused’s evidence [ 88 ] The accused first found out about Gucci a few weeks after he moved into Foxglove. He heard about Gucci from the news media.

He had not met Gucci before, but had seen his picture, and later had seen him around. [ 89 ] While at Foxglove, the accused heard through the rumour mill that the complainants were going to testify at Gucci’s trial. After hearing of this news, the accused refused to sell drugs to the complainants because, according to him, “[a] rat is a rat.” [ 90 ] The accused did not mind dealing with A.K. One time, when A.K. asked the accused about testifying at Gucci’s trial, the accused said: I gave him my advice.

I said that this Gucci guy, ‘cause I’ve heard about him, and it was on the news that he was -- just finished seven years for a rape charge to top it off, that to be careful. I mean, the guy was out on bail. The guy was on the run and where they were, it wasn’t hard for them to find them. . . . everybody’s already talking about it, . . . I gave them advice. I said there’s young kids that want to make a name for themselves.

I said be careful. [ 91 ] A.M. also asked the accused about Gucci several times, and he told her the same thing he told A.K. – essentially, to be careful. [ 92 ] The accused disagrees with the complainants that he and Gucci were “homies” or he was “good friends” with Gucci. He might have said, “homie’s out on bail.” He does not “even know the guy.” In using the word “homie,” he meant “like another dude or . . . like bro.” Everybody used names like that. [ 93 ] The complainants misinterpreted the advice the accused gave them. In no way was he trying to threaten them.

He was not going out of his way for somebody else (referring to Gucci). He is almost 50 years old, and he has learned his lessons over the years.

PARTIES’ SUBMISSIONS The Defence [ 94 ] With respect to Counts 1 and 2, as I said earlier, in light of the accused’s admission that he made the threats alleged in Counts 1 and 2, the defence invites the court to find him guilty on those two counts. [ 95 ] With respect to Counts 3 and 4, the defence says, the court should not reject the accused’s evidence, and that even if the court does not give any weight to his evidence, he should still be acquitted, as the Crown witnesses’ evidence on Counts 3 and 4 “cannot be accepted as accurate beyond a reasonable doubt.” [ 96 ] The defence says there is nothing about the content or the manner in which the accused gave his evidence that would require his evidence to be rejected.

It says, along with the presumption of innocence, there is a presumption that when one testifies in court, one is presumed to be telling the truth, unless that presumption is rebutted by good reason, such as internal or external inconsistency to such an extent that the only inference that can be drawn is that the witness is mistaken or dishonest. [ 97 ] The defence says the accused’s version of events, standing alone, is reasonable and consistent within the context in which he found himself. He has a criminal record and a drug addiction. He had relapsed.

He has an aversion to “rats” due to the social conditioning one undergoes when living a lifestyle on the fringes of society. He knew that “rats” and those who associate with “rats” get treated poorly. [ 98 ] The accused’s evidence that he did not threaten any harm to the complainants due to them testifying at Gucci’s trial, but simply advised them to be cautious, is reasonable. The accused had no reason to intimidate the complainants, as he had no connection or ties to Gucci.

There is no evidence that he did. [ 99 ] The defence says the complainants exhibited extreme animosity towards the accused, and for this reason alone, the court should be cautious of accepting their evidence against the accused. They may well fear harm from the accused in light of his threats regarding the alleged theft of his drugs, and they both knew that he was avoiding contact with them because he considered them rats.

They had motive to exaggerate their evidence against the accused, conflate matters, and assert that the advice the accused gave the complainants was a threat rather than a suggestion that they be cautious. [ 100 ] The defence submits that neither complainant presented as a highly reliable witness. Their evidence regarding the accused spending the night in A.M.’s room is bizarre and sketchy. This supposedly occurred at a time when the complainants were not on good terms with the accused. There is no corroboration of this evidence. The accused’s evidence as to why he believed A.M. stole his drugs makes more sense.

[ 101 ] While the defence acknowledges the accused’s version of events is not exemplary or without faults, it submits that it would be wrong to find beyond a reasonable doubt that the accused’s version (wherein he denies intimidating the complainants) is incorrect. The Crown [ 102 ] The Crown says that A.K. testified in a “truthful” and “matter of fact” manner and that he did not embellish his evidence or portray himself in a positive light. [ 103 ] The Crown notes that A.K.’s evidence, particularly on key points, is similar to that of A.M.’s evidence.

It is not identical, suggesting that there has been no collaboration or collusion between the two of them. [ 104 ] The Crown says A.M. presented as a vulnerable person, and not a vindictive person who was out to accuse the accused falsely. [ 105 ] While the Crown admits that the reliability of A.M.’s evidence may be affected to some extent by her heroin addiction during the Relevant Period, it submits that A.M. did not lie at any time or embellish her evidence. [ 106 ] The Crown submits that W.C.G. at no time presented as dishonest or vindictive.

It says, of the three civilian witnesses, W.C.G. presented as unbiased. [ 107 ] The Crown submits that the accused’s evidence is unworthy of belief and does not raise a reasonable doubt. It says his evidence was replete with internal inconsistencies, and that he was untruthful and argumentative while testifying. [ 108 ] The Crown pointed to the accused’s lengthy criminal record, which lists about 75 convictions from 1991 to December 2020, most of which occurred while he was an adult.

His adult record starts from 1994. [ 109 ] The Crown says the accused tried to portray himself in a positive light by claiming that he was a changed man who has learned his lessons. The Crown points out that while the accused claimed that he had a problem threatening others when he was younger, and that he is a changed man now, his convictions for threatening range from 1997 up to and including December 2020. [ 110 ] The Crown submits that there are not only internal, but also external inconsistencies in the accused’s evidence.

Furthermore, it says, there are “outright lies” and some assertions that are “unbelievable.” [ 111 ] In sum, the Crown submits that the accused is not a credible witness, and his assertions of innocence regarding Counts 3 and 4 are self-serving and not worthy of belief. As such, it says, the court should find him guilty on all four counts. [ 112 ] I will now turn to the discussion of the issues at hand.

DISCUSSION [ 113 ] As I said earlier, this case raises issues of credibility on the part of the three key witnesses, namely, the two complainants and the accused. [ 114 ] There were internal and external inconsistencies in all of their evidence. The further complicating factor is that all three key witnesses were using substances, alcohol and/or drugs, during the Relevant Period.

A.M. was particularly susceptible, as she presented as a “vulnerable and serious addict.” I have deep concerns about the reliability of her evidence. [ 115 ] All four witnesses had issues with their memory, including having difficulty recalling the exact dates of when the key incidents occurred. [ 116 ] I will first address some of the concerns the Crown raises as lies, inconsistencies, and unbelievable assertions in the accused’s evidence. Lies [ 117 ] The Crown alleged five points of lies in the accused’s evidence: 1.

The accused said he worked at Foxglove for two years, but later admitted that Foxglove only opened in April 2022, as the Crown witnesses testified. The defence points out that this is not a lie, as the accused’s evidence was that he worked at RainCity for two years, which is the organization that runs Foxglove. I note that the accused said, “RainCity has, like, ten different buildings that they own I used to work at.” I agree with the defence that this is not a lie.

As will become evident from further quotes of the accused I will be referring to, the accused appears to have a certain style of speech – which appears to be imprecise or inarticulate, but that does not necessarily mean that his expression is deceitful. Each expression would have to be assessed in its entire context. 2. Regarding the conditional sentence and probation orders the accused received in December 2020, the accused said he followed all the rules and did everything he could to change himself.

However, he denied being in breach of the probation order (which ran until December 2022) even though he admitted to using and selling drugs, and threatening A.M. while he was still subject to the probation order. The defence points out that the accused did not say that he did well during the entirety of these orders, but that he relapsed when he got

bad news about his family matters, the last time being when he was served with a protection order. I agree with the defence that the accused was trying to change himself. I believe he was sincere about changing himself, but he was also honest about the fact that he could not consistently follow through with his intentions to change himself, as he relapsed when he got hurt, such as when he was served with a protection order. 3. The accused denied being in jail for offences relating to his wife in April 2020, for which he was sentenced in December 2020, but his criminal record indicates otherwise.

He also denied being in jail since 2011, but later admitted to being in custody at Surrey Pre-Trial Centre for three days after his arrest on July 17, 2020. The defence explains that when the accused says that he did not go to jail on his most recent matters, he is technically incorrect, but functionally correct. The defence says, any time he spent awaiting disposition would have been served in a pre-trial facility rather than at a sentencing facility.

Therefore, it is not unreasonable for an accused to assert that they got no jail when they get a “time-served” sentence because they are not then sent to a sentencing facility. I agree with the defence that this is a reasonable and plausible explanation for the accused’s assertions. It is particularly so in the context of the accused’s incredibly lengthy criminal record, which indicates that he has been in and out of custody on numerous occasions.

It is understandable why he could be confused about the various times he was at a pre-trial facility versus a sentencing facility, and how these in-custody periods were allocated towards the sentence for his various offences. When Crown probed about the entries on his criminal record, the accused first said the criminal record was incorrect, but later admitted that all the entries were correct. Again, I understand how one can get confused, particularly in the accused’s case, where his record has 70 plus entries ranging a span of about 30 years. 4.

The accused made a serious allegation that one or more people saw A.M. stealing drugs from him when he was passed out on the second floor balcony, only to later admit that he was not sure who took his drugs. The defence says that based on the information he had, the accused truly believed that A.M. took his drugs. Otherwise, he would not have threatened her. In fact, on reflection, for him to admit that he may have been wrong, reflects well on his credibility, as opposed to him lying, as the Crown suggests. I agree with the defence on this point as well.

The accused’s evidence indicates that while he is quick to react to situations, he appears to reflect on situations and attempts to deal with them as best as he can – in this instance, admitting that he may have been wrong about A.M. stealing his drugs. 5. At the end of his cross-examination, the accused said he was telling the truth, suggesting that he had said no lies. The defence correctly disputes the Crown’s circular argument that the accused’s statement that he was telling the truth and not lying is itself a lie.

I agree with the defence that this is an unproven assertion, and does not detract from the accused’s overall credibility. Internal inconsistencies [ 118 ] The Crown listed 11 points of internal inconsistencies in the accused’s evidence. It said, from the start of his testimony and especially in cross-examination, the accused began changing his evidence.

The Crown submits, “this is not as much an issue of reliability as it is a reflection of his dishonesty.” The Crown notes that while some of the inconsistencies may be minor in nature, collectively, they are indicative of a pattern of disregard for accurate, truthful evidence. [ 119 ] The defence did not provide any submissions on these 11 points. I do not intend to discuss them in any detail, except to list them for some brief discussion.

They are as follows: 1. total period the accused has been clean; 2. when the accused relapsed in 2020; 3. whether the accused got clean and sober before he moved back home in 2020; 4. whether the accused got clean and sober when released on bail in 2020; 5. period the accused was clean and sober before he entered Foxglove; 6. whether the accused relapsed before he entered Foxglove; 7. the accused’s life-long drug addiction; 8. the accused’s use of Gucci’s name; 9. whether the accused knew Gucci; 10. the accused’s knowledge that A.M. had stolen his drugs; and 11. the accused’s concern about getting his children involved in his affairs.

External inconsistencies

[ 120 ] The Crown listed the following nine points of external inconsistencies in the accused’s evidence compared to the complainants’ evidence: 1. the accused’s use of a bong to smoke heroin; 2. the accused’s denial of ever going on a “nod” after consuming heroin; 3. the accused claimed to stop using heroin at the end of September 2022 and going on medication, whereas he was believed to be using heroin throughout his stay at Foxglove; 4. the accused’s assertion that everyone at Foxglove knew about the complainants testifying at Gucci’s trial; 5. the accused’s claim that he had a friendly relationship with A.K. before he learned that he was a rat, and had many conversations with A.K., which A.K. denied; 6. the accused’s claim that he told the complainants that he refused to sell drugs to them because they were rats; 7. the accused’s claim that A.M. was always trying to approach him and talk to him, such that he asked A.K. to speak to her to keep away from him; 8. the accused’s claim that both complainants were trying to approach him, when he was trying to avoid them; and 9. the accused’s claim that he told both complainants that Gucci had done seven years jail for rape, was dangerous, was on bail and on the run, to watch out for kids trying to make a name for themselves, and it would not be hard to find them at Foxglove, which A.K. denied.

Unbelievable assertions [ 121 ] The Crown listed the following assertions by the accused, which it characterizes as “unbelievable”: 1. The accused’s claim that “everybody” at RainCity was talking about Gucci, whom police in Surrey wanted for breaching his bail. Given the volume of crimes committed in Surrey and the drug users and criminals at the shelter, it is hard to believe that everyone at the facility were discussing this one criminal who was wanted for breach of bail, and not some heinous crime like murder. 2.

The accused’s claim that the two complainants were rats, with whom he did not want to associate, but at the same time, he claims to have warned them about Gucci, as the Crown put it, “out of kindness or concern.” 3. The accused’s claim that he was convicted for a breach of a release order due to him leaving the recovery house for four hours for a physio appointment was a complete misunderstanding. 4.

The accused’s denial of having a strong dislike of people who assist the Crown or the police does not align with his tone of voice and choice of words he used in describing the two complainants, stating, “[a] rat’s a rat.” 5. The accused’s claim of not using heroin but continuing to carry it for sale to others is not consistent with what is known about addiction to heroin. It would be a remarkable feat of restraint for a serious addict to avoid using heroin in such circumstances. 6.

The fact that the accused made serious threats to cut off A.M.’s hands, get his daughter to punch her out, and reported the alleged theft to the managers at the facility, when he did not even know who took his drugs. 7. The accused’s repeated claim that he did not care about Gucci, and yet he warned the complainants about testifying against Gucci, saying that Gucci was dangerous. 8. If the alleged theft of the accused’s drugs occurred on his birthday, on November 18, 2022, why would he wait until November 20, 2022 to threaten A.M. and demand return of the drugs? 9.

Given the stark contrast in the description of the conversations between the two complainants and the accused regarding testifying at Gucci’s trial, it is hard to comprehend how the complainants could have misinterpreted the accused’s comments, as the accused claims. [ 122 ] The defence did not provide any submissions on any of these points. [ 123 ] The defence did not point out the internal and external inconsistencies in the complainants’ evidence either.

No doubt, there were a number of them. [ 124 ] The following are a few examples of internal inconsistencies in A.K.’s evidence from his evidence on March 17, 2023 (when he initially testified) compared to his evidence on June 1, 2023 (when he was recalled to testify): 1. March 17, 2023 – A.K. testified that he told his support worker at Foxglove about the December 2021 shooting incident, and also told the accused about it, noting that he could not recall who brought up the shooting incident. He said he could not remember if he told any of the other residents.

He said the Foxglove residents started calling him and A.M. “rats.” June 1, 2023 – when the defence put to him that he did not like the accused because the accused referred to the complainants as rats, A.K. said, “No, I never heard him [referring to the accused] say rats. This is the first time, I am hearing you [referring to defence counsel] use the word ‘rats’. No one called me a rat.”

This is perplexing because during the cross-examination of A.K. on March 17, 2023, defence counsel used the term “rats” on numerous occasions and yet on June 1, 2023, A.K. said that was the first time he heard defence counsel use the word “rat.” His evidence that no one called him a rat is also inconsistent with his own testimony on March 17, 2023 when he said the other residents started calling him and A.M. rats. A.K.’s evidence is also contrary to A.M.’s evidence. She stated that other residents called her and A.K. rats and snitches, and they wrote on bathroom walls to this effect.

She also said, on the morning she was waiting to go to the hospital, the accused started calling the complainants and W.C.G. rats, when the interaction between the accused and W.C.G. got louder and more aggressive. A.K. was also there at that time. 2. March 17, 2023 – A.K. said he would see the accused at least three times a day, the accused was an acquaintance, and they would talk. June 1, 2023 – A.K. said he never talked to the accused much, and he did not like the accused because of the way the accused treated women. 3.

March 17, 2023 – A.K. said the accused threatened to “stab” the complainants for stealing his drugs. June 1, 2023 – A.K. said the accused threatened to “cut off our hands.” I note that he never once said the phrase “cut off our hands” on March 17, 2023. This wording resembles the accused’s evidence on April 18, 2023. Clearly, A.K. seems to be embellishing his evidence. Also, on March 17, 2023, A.K. said the accused carried “at least three knives on him.” This appears to be an exaggeration, as there is no corroborative evidence of this. The accused denies this. 4.

March 17, 2023 – A.K. said the accused sold drugs to him and A.M., and A.K. would pick up drugs from the accused for A.M. early in the accused’s stay at Foxglove. He said, later, he, on his own accord, stopped going to the accused for drugs, and that he stayed with his own dealer. A.M. also testified that the accused sold drugs to A.K. June 1, 2023 – A.K. said he never got drugs from the accused, and that he did not know whether A.M. tried to get drugs from the accused. [ 125 ] There are more contradictions in A.K.’s testimony. [ 126 ] A.K. clearly demonstrated his animosity towards the accused.

He said the accused is a “bully who needs to be put away.” He admitted that he was angry because, in his view, the accused was getting away, when the complainants were walking on “egg shells.” [ 127 ] I have some concerns about A.K.’s feelings towards the accused, and his

interpretation of his interactions with the accused – all leading to concerns about the reliability of his evidence. [ 128 ] I am not suggesting that A.K. was dishonest, nor am I dismissing his feelings towards the accused. His animosity towards the accused may very well be justified from his personal standpoint, given the threats the accused made towards him and A.M. regarding the alleged theft of the accused’s drugs. [ 129 ] As I already indicated, I also have concerns about the reliability of A.M.’s evidence. I would not say that she was dishonest either.

Given her mental and physical health concerns, and her challenges with her memory, I believe she did her best. However, her evidence, particularly relating to her interactions with the accused on the night she says the accused spent in her room is a bit sketchy. [ 130 ] For example, A.M. says the accused slept on her lap for more than six hours. This is hard to believe. How could she, a drug user herself, have been able to stay up throughout the night with a man passed out on her lap for more than six hours? The accused’s evidence was that he was passed out on the second floor balcony.

It is not clear how the accused made his way into A.M.’s room. The accused denies this whole incident, and says that the second floor residents cannot freely move to the upper floors where A.M.’s room was.

He also denies that A.M. brought him breakfast the next morning because he says the residents have to personally attend to get their meals, and that this is a method by which the Foxglove staff keep track of the residents. [ 131 ] Even if this incident happened, I am reluctant to place any weight on A.M.’s evidence of her conversations with the accused, as the accused was highly intoxicated, according to him on alcohol and weed, but on heroin, according to A.M. [ 132 ] Regarding the Crown’s list of the accused’s inconsistencies, I do not intend to discuss it in any detail, as most of them are minor in nature, which the Crown also acknowledges. [ 133 ] As I said before, the accused’s evidence was not precise or articulate.

However, I do not agree with the Crown’s submission that the discrepancies in the accused’s evidence is a “reflection of his dishonesty.” [ 134 ] When the accused’s evidence is considered in its entirety, it becomes apparent that he is somewhat of an emotional and impulsive man, who has spent the better part of his life caught up in the vicious cycle of drug addiction and crime, and going in and out jail. This experience appears to have had an impact on his attitude and behaviour towards other people.

As he testified, he resorts to empty threats when he is angry, and tries to stay clear of people considered rats to protect himself from harm. [ 135 ] In the midst of this vicious cycle, he appears to have been trying hard to have a normal life with his wife and children. It does not appear that he has been entirely successful, but he appears to be still trying. [ 136 ] What I find telling from his evidence is his candour in admitting to things he has done wrong, and his preparedness to face the consequences. He says he is prepared to accept jail if that is the consequence for his wrongdoing.

He has willingly admitted to the threats he made, as alleged in Counts 1 and 2. He admitted that he was “stupid” in assuming that A.M. stole his drugs when he did not know for sure that she stole his drugs. He said that he made a mistake.

[ 137 ] However, he stands firm in stating that he did not intimidate or threaten the complainants from testifying at Gucci’s trial. He truly believes that he only provided advice to the complainants and asked them to be careful, as he knows from his time in jail how people who are considered rats can be treated. [ 138 ] The following discussion of the accused’s evidence is indicative of his straight-forwardness and his intentions in his dealings with the complainants about Gucci. [ 139 ] The accused has been in and out of recovery, struggling to maintain his sobriety.

He became a bit argumentative when the Crown put to him some probing questions about his criminal record and the timelines of his sobriety and relapses.

At one point he said, the entries in his criminal record were incorrect, but later admitted that his record was accurate. [ 140 ] When the Crown put to him that he has been convicted of numerous crimes of dishonesty, including numerous thefts and possession of stolen property (approximately 21 of them), the accused readily said, “I have no doubt.” [ 141 ] When the Crown put to him that he has been convicted of numerous offences pertaining to breach of court orders, including failures to attend court (approximately 20 of them between 1996 and 2020), he said, “. . . up until 2009 I was like that. . . .

After that, I became somebody different. I have two boys that changed me.” This is not entirely accurate as his record shows that he offended in 2010 and 2011, and then after a gap of about eight years, his offending resumed in 2019. [ 142 ] He admitted that he has 27 convictions for crimes of violence (two as a youth and 25 as an adult), and 13 convictions for uttering threats between November 1997 and December 2020. [ 143 ] The accused pointed out that he was clean and sober for 12 years, suggesting that he did not offend during this period.

However, his record shows a gap of about eight years, from 2011 to 2019. [ 144 ] He admitted that he made a threat to cause bodily harm to A.M. in November 2022. He also admitted that he was on probation when he made that threat. [ 145 ] When the Crown put to the accused, “through your associations, you have developed a strong dislike of people who assist the police or the Crown,” the accused replied, “It’s not I dislike ‘em.

I just don’t want anything to do with ‘em.” [ 146 ] When the Crown suggested that because of the accused’s dislike of people who are “rats” or “snitches,” he took it upon himself to tell other residents at Foxglove that the complainants were rats and snitches and that those residents should stay away from them, the accused categorically denied this to be the case. He said it was the other residents, who told him about the complainants testifying at Gucci’s trial.

When the Crown pointed out that, at that time, the complainants were not even identified as witnesses, the accused said five other people who lived at the Laurel Drive residence (where the shooting occurred) were also living at Foxglove, and they were the ones who told him that the complainants were going to testify at Gucci’s trial.

That is why, he said, he stopped hanging around with the complainants. [ 147 ] When the Crown suggested to the accused that he very well knows from being involved in the subculture of drug users that labelling people as rats or snitches puts them at risk of physical harm, the accused replied, “They were already labelled . . . I warned them about it too. I told them out of concern.” [ 148 ] The accused denied the following suggestions by the Crown: (

a) the accused met Gucci in jail; (

b) the accused and Gucci were on the run together after the December 2021 shooting; (

c) the accused told A.K. he was “good friends” with Gucci, and kept in touch with him by telephone every day; (

d) one time, the accused handed his cellphone to A.K. and said, “Gucci wants to talk to you”; and (

e) the accused told A.M. that he regarded Gucci as a “homeboy” and they looked after each other’s backs. [ 149 ] The accused said he does not know Gucci at all, and that he was in recovery, on house arrest, at the time of the December 2021 shooting. He said after learning of the outstanding warrant against him, he turned himself in, and he is “oblivious to all the shit that’s going on.” [ 150 ] The accused categorically denied the Crown’s suggestion that when his attempts at dissuading the complainants did not work, he resorted to intimidating and threatening them.

He said similar to A.K., he too was shot in the leg in 1999, and that he and A.K. talked about that. He reiterated that he never dissuaded them from testifying. He pleadingly said: . . . I thought she stole my dope and I got pissed off at her for that. . . . But other than that, I mean, I’m asking please don’t include me in this guy, hey, because I really, honestly have nothing to do with this guy. I don’t care what they’re doing. I like, for the last couple [of] years, I’ve been fighting to get back with my kids.

I’ve taken all the programs, R&R, I’ve been doing everything I can and I’ve had setbacks where I got served with a protection order. I relapsed from that. I became upset. I went to that place for help. I got the help that I wanted from them and I’m in a place now where I’m in good . . . I went through with a purpose and those people were there . . . [ 151 ] The accused denied making any threats about Gucci to A.K. or to W.C.G. He said he and A.K. had “pretty good conversations” and that he had “a pretty good relationship” with W.C.G.

He said there were times when W.C.G. was racist towards him, but he just ignored it. [ 152 ] The accused said the complainants kept trying to talk to him. He let A.K. know that he did not want anything to do with them.

[ 153 ] The accused said A.M. tried to “butter” him up one day, and he thought it was for buying drugs from him, but she asked the accused, “What do I got to do to get out of this?” The accused told her, “that’s not my business on how you’re going to get out of it. . . . you’re in a real shit circumstance right now and where you hang out right now is not a good place for you guys to be.” He said that is exactly what he let the complainants know. [ 154 ] During intense cross-examination, the accused said: . . .

I made a mistake and I threatened [A.M.] over my drugs and stuff . . ., but as far as all this other stuff [referring to the Gucci allegations] . . . you’re not going to get me to say . . . something I haven’t done. I didn’t do that. . . . I’m telling you the honest truth. I have no lies. If you look at my record, I plead guilty to whatever I’ve done. . . . I take the ride. I always face what I do. . . . I’m telling you the truth. . . . the Gucci guy is not a friend of mine. . . . I don’t care what happens with him. The only thing I care about is if they’re rats, I don’t want to sell drugs to them.

I don’t want to do nothing with them, ‘cause all that’s going to do is put me either in jail or in jeopardy of whatever’s going on with them. . . . [ 155 ] When the Crown suggested to the accused that he told the complainants, “they were going to get shot or stabbed if they testified,” the accused said, he told the complainants that “they [had] better be careful of that because of what those guys are about.” [ 156 ] The accused disagreed with many aspects of the complainants’ evidence. He freely admitted that he was angry with A.M. because he thought she stole his drugs. He said he sells drugs to survive.

He emphatically denied that he has any reason to come after A.M. after she returns from the hospital. He said: I’ve made a lot of empty threats in my past. . . . it’s my defence mechanism that I learned from probably doing time, . . . it’s something stupid that I’ve tried to work on. I’ve been going to anger management. I take R&R, I take substance abuse management. I have a drug/alcohol counsellor, . . . my [Probation Officer], she’s become, like, one of my best friends. I work with her through R&R. . . . I have so many programs that I take. . . .

The only thing I can’t deal with is hurt. . . . that’s my problem and that’s when I relapse and I need to learn how to deal with hurt . . . I went through a lot with my wife and my kids . . . . . . Now I’m sitting in jail for three months. I came here, turned myself in and then now you’re trying to tell me I did some shit that I didn’t do. . . . I’m telling you, I didn’t do that. . . . I’ve done a lot of time in jail. No lie about it. And if I get jail, I get jail. I mean it’s what it is.

What I’m upset about right now is that I’ve had my life going right and I relapsed and then I got myself into some kind of trouble and now you guys are trying to tell me something that I didn’t do. . . . I’m telling you honest to God, . . . I don’t care about this Gucci guy. I don’t care about any of that shit.

I care about my stuff and when my stuff is in jeopardy, I tend to lash out and I done it again. [ 157 ] When asked if the accused did not care about Gucci, why he refused to interact with the complainants, the accused said: In the state of, like, using and stuff like that, [if] you’re a rat, you’re shunned. . . . I care if they’d rat on me. If I’m dealing with them and they’ve already ratted on somebody else, the chances of them ratting on me, like if I sell dope to them, . . . . . . I didn’t care if they testified against him [Gucci].

I just care that they’re rats, I don’t want nothing to do with them. . . . if you come into jail, if you’re a rapist or a rat, you’re going to get beat the hell up. . . . If they’re rats, I want nothing to do with them. Later on, I don’t want somebody to say, “Hey, Desmond was hanging around with these rats.” I come into jail or something like that and then somebody says, “Hey, I seen Desmond at the RainCity shelter. He’s hanging around with these guys all the time.” Next thing I know, I’m going to have three, four inmates coming to my cell trying to stab me or beat me up.

That’s the way it is. . . . it’s called putting them on the grease. I don’t want nothing to do with them. . . . if they gonna rat on him, the chances are they’re gonna rat on me. And I’m living in that world at the time. I’m selling drugs. Something might happen and they’d rat on me. If I have nothing to do with them, then the chances of them ratting on me . . .

It’s not going to happen . . . it’s probably being in custody too many times in my life that it’s just kind of been in me to stay away from rats, . . . [ 158 ] The accused said it is for these reasons that he tried to stay away from the complainants, and he explained his reasoning to them, but A.M. just would not understand. She would continue to try to have contact with him, and she did not like the fact that the accused would not give her the attention she was seeking from him. [ 159 ] For the offence under s. 423.1(1) (

b) of the Criminal Code to be made out, the Crown must, in addition to the other elements of the offence, prove a specific intent on the part of the accused to impede the two complainants from testifying at Gucci’s trial. The Crown must prove that the accused could foresee that by conveying a threat of violence, intimidation sufficient to impede the complainants’ performance in their duties as justice system participants would result. [ 160 ] The Crown submits that the accused engaged in a course of intimidating and threatening conduct towards the two complainants over a period, inducing a state of fear.

It says, even if the accused did not know Gucci, as he claims, it is no defence. It says the accused made the two complainants believe that he and Gucci, a powerful and dangerous man, were good friends, and “they” would harm them if

they testified at Gucci’s trial. Given the accused’s strong dislike of witnesses for the Crown or police, as rats, he had motive to intimidate and threaten them, and to discourage them from testifying, even if he did not know Gucci. [ 161 ] Respectfully, I disagree with this submission. Other than A.K.’s assertion that the accused and Gucci were “good friends,” there is no corroborative evidence in this respect.

The accused emphatically denies that he even knows Gucci, let alone being good friends with him. [ 162 ] The evidence of the complainants and the accused regarding the alleged offences in Counts 3 and 4 are completely at odds with each other. [ 163 ] However, the evidence I accept indicates as follows: (

a) five people who lived at the Laurel Drive residence where the December 2021 shooting incident occurred lived at Foxglove when the accused moved into Foxglove in or around September 2022; (

b) the information about Gucci being a violent man, on the run, and wanted by police was generally known at Foxglove when the accused moved into Foxglove; (

c) the news media reported on the Gucci matter as well; (

d) A.K. told his support worker at Foxglove that he was going to testify at Gucci’s trial; (

e) the residents at Foxglove knew that the complainants were going to testify at Gucci’s trial; (

f) Foxglove was not a safe place to be – people stole things from each other; the residents included addicts and people involved in crime; (

g) the residents were calling the complainants rats and snitches, and wrote on bathroom walls to this effect; and (

h) A.M. was fearful and was suicidal. [ 164 ] This evidence indicates that the environment at Foxglove was toxic for the complainants, even before the accused moved in. This is consistent with A.M.’s evidence that the accused was nice to her before he moved into Foxglove, which suggests that he was not aware of the fact that the complainants were going to testify at Gucci’s trial. However, once he moved into Foxglove, as the accused said, he learned from the news media and the other residents about the Gucci matter and the fact that the complainants were going to testify.

That is when his behaviour towards the complainants changed. [ 165 ] Therefore, regardless of what the accused might have said to the complainants, I find that they were already in a state of fear from the knowledge they had about Gucci being a violent person, and the fear the residents created by calling the complainants rats and snitches, and making known their disgust on bathroom walls. A.K., being stronger than A.M., seems to have managed this state of fear better than A.M., who was vulnerable.

She said she was fearful. [ 166 ] What is telling is that if it was the accused, who had by his words or conduct, threatened or intimidated A.M. in any way, I doubt that she would have repeatedly tried to connect with the accused and prove to him that she was a good person. That was the reason she said she allowed the accused to stay overnight in her room. Her evidence was that she asked the accused, “how she could get out of this,” referring to the Gucci matter, to make things better for herself and A.K.

If the accused had instilled in her such a state of fear, it is highly unlikely that she would have gone to him to ask how she could get out of the difficult situation she felt she and A.K. were in. Also, it would not give credence to her evidence that she allowed the accused to stay in her room overnight, he slept on her lap for upwards of six hours, and the two of them laughed and shared hugs the next morning. [ 167 ] I am not satisfied that the accused induced a state of fear in the complainants over a period, as the Crown submits.

A.K. repeatedly said that he was not afraid of the accused and he asked the accused to get the “fuck out”, and at another time, he told the accused to mind his own business, and that he knew what he was doing. [ 168 ] As I quoted earlier, the accused did not say that he strongly disliked witnesses for the Crown or police, but he said that he did not want to associate with them – I surmise, he said that totally out of his self-interest. He was deeply concerned about what could happen to him if he were labelled a rat helping other rats.

This sense of self-preservation, I suspect, developed largely from the accused’s experience as an inmate in jail for lengthy periods, explains his motivation and intent for his communication with, and behaviour towards, the two complainants. [ 169 ] I find that the accused only warned the complainants about the potential consequences of testifying at Gucci’s trial, as opposed to intimidating or threatening them, and dissuading them from testifying at Gucci’s trial. [ 170 ] On the totality of the evidence, viewed as a whole, I am not convinced beyond a reasonable doubt of the accused’s guilt on Counts 3 and 4, as the Crown has not proved beyond a reasonable doubt the mens rea component of the alleged offences in Counts 3 and 4.

CONCLUSION [ 171 ] In conclusion, for the reasons I have discussed, I find the accused guilty on Counts 1 and 2, and not guilty on Counts 3 and 4, on Information No. 251709-1. By the Court,

_____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia CORRIGENDUM - Released September 18, 2023 In the Oral Reasons for Judgment dated July 18, 2023, the following changes have been made and are reflected in this document: [1] On the front cover, one of the Dates of Hearing, June 13, 2023, has been amended to read June 14, 2023. [2] On page 24, paragraph number 121 has been added to an unnumbered paragraph. As a result, subsequent paragraph numbering has been changed. _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia